This
matter is before the Court on defendant Paul Antonio
Early's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. ECF No. 529. Early
contends that his sentence should be corrected because he was
improperly classified as a career offender under § 4B1.1
of the United States Sentencing Guidelines and because his
attorney provided ineffective assistance of counsel when he
failed to object to that classification. The Court disagrees
and therefore denies Early's § 2255 motion.

I.
BACKGROUND

Early
pleaded guilty to distributing cocaine base in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). ECF No. 334. Early
had prior felony convictions for second- degree assault with
a dangerous weapon (in violation of Minn. Stat. §
609.222, subd. 1) and first-degree aggravated robbery (in
violation of Minn. Stat. § 609.245, subd. 1). PSR
¶¶ 107, 110. The parties agreed that, for purposes
of § 4B1.1, Early's offense of conviction was a
“controlled substance offense” and each of his
two prior felony convictions was a “crime of
violence.” Based on this conclusion, the parties agreed
that Early qualified as a career offender under § 4B1.1.
Plea Agreement ¶ 5(c); PSR ¶ 63.

The
Court held a sentencing hearing on May 24, 2016. ECF No. 446.
At that hearing, the Court agreed that Early was a career
offender and concluded that Early's total offense level
was 29 (after applying a three-level reduction for acceptance
of responsibility), that his criminal-history category was VI
(because of his career-offender status), and that his
Guidelines range was 151 to 188 months. ECF No. 451 at 1. The
Court then varied downward and sentenced Early to 100 months
in prison. ECF No. 450. Early did not appeal. Eight months
later, Early filed this § 2255 motion.

II.
ANALYSIS

At the
time that Early was sentenced, a felony conviction could
qualify as a “crime of violence” under any of
three clauses of § 4B1.2. Under the force
clause, an offense was a crime of violence if it
“ha[d] as an element the use, attempted use, or
threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1) (2015). Under the
enumerated-offenses clause, an offense was a crime
of violence if it was “burglary of a dwelling, arson,
or extortion, [or] involve[d] the use of explosives.”
Id. § 4B1.2(a)(2). And under the residual
clause, an offense was a crime of violence if it
“otherwise involve[d] conduct that present[ed] a
serious potential risk of physical injury to
another.”[1]Id.

Early
argues that neither his conviction for second-degree assault
with a dangerous weapon nor his conviction for first-degree
aggravated robbery qualified as crimes of violence under the
residual clause because the residual clause is
unconstitutionally vague under Johnson v. United
States, 135 S.Ct. 2551 (2015). Unfortunately for Early,
however, the Supreme Court rejected his argument in
Beckles v. United States, 137 S.Ct. 886 (2017).

Early
also argues that, constitutional considerations aside, the
Court simply erred in finding that his prior convictions were
crimes of violence for purposes of § 4B1.2, and that his
attorney provided ineffective assistance of counsel when he
conceded that Early was a career offender. But Early
identifies no reason why his two convictions were not crimes
of violence under the residual clause of § 4B1.2. Early
also identifies no reason why his two convictions were not
crimes of violence under the enumerated-offenses clause. At
the time that Early was sentenced, the United States
Sentencing Commission had long interpreted the term
“crime of violence” to include aggravated assault
and robbery; in fact, the Sentencing Commission identified
both aggravated assault and robbery as crimes of violence in
an Application Note to § 4B1.2. See U.S.S.G.
§ 4B1.2, cmt. n.1 (2015).[2] The Eighth Circuit had also
treated both aggravated assault[3] and robbery[4] as enumerated
crimes of violence for purposes of the Guidelines.

In any
event, both of Early's convictions were crimes of
violence under the force clause of § 4B1.2. The
Eighth Circuit has repeatedly held that a conviction for
second- degree assault with a dangerous weapon under Minn.
Stat. § 609.222, subd. 1, is a “violent
felony” under the force clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B)(i). See United States v. Headbird, 832
F.3d 844, 846-47 (8th Cir. 2016); United States v.
Lindsey, 827 F.3d 733, 738-40 (8th Cir. 2016);
United States v. Harvey, 642 F. App'x 650 (8th
Cir. 2016) (per curiam).[5] The force clause of the ACCA is
substantively identical to the force clause of § 4B1.2,
and the Eighth Circuit treats the two clauses “as
interchangeable.” United States v. Boose, 739
F.3d 1185, 1187 n.1 (8th Cir. 2014).

Early's
conviction for first-degree aggravated robbery under Minn.
Stat. § 609.245, subd. 1, likewise qualified as a crime
of violence under the force clause. Under Minnesota law,
simple robbery is a lesser-included offense of first-degree
aggravated robbery; in other words, one cannot commit
first-degree aggravated robbery in violation of Minn. Stat.
§ 609.245, subd. 1, without committing simple robbery in
violation of Minn. Stat. § 609.24. See Minn.
Stat. § 609.245, subd. 1 (“Whoever, while
committing a robbery, is armed with a dangerous weapon
or any article used or fashioned in a manner to lead the
victim to reasonably believe it to be a dangerous weapon, or
inflicts bodily harm upon another, is guilty of aggravated
robbery in the first degree . . . .”) (emphasis added).
Simple robbery in violation of Minn. Stat. § 609.24 is a
crime of violence under the force clause of the ACCA and
hence under the force clause of § 4B1.2. See United
States v. Jennings, 860 F.3d 450, 453-57 (7th Cir.
2017); United States v. Maxwell, 823 F.3d 1057,
1060-62 (7th Cir. 2016); United States v. Willis,
No. 11-CR-0013 (DSD/JJK), 2017 WL 1288362, at *3 & n.3
(D. Minn. Apr. 6, 2017); United States v. Pankey,
No. 07-CR-0214 (DWF/RLE), 2017 WL 1034581, at *3 n.2 (D.
Minn. Mar. 16, 2017); United States v. Taylor, No.
15-CR-0091 (JNE/LIB), 2017 WL 506253, at *3-7 (D. Minn. Feb.
7, 2017).[6] Thus, first-degree aggravated robbery is
necessarily a crime of violence under § 4B1.2. See
United States v. Rucker, 545 F. App'x 567, 573 (8th
Cir. 2013) (“Rucker's aggravated robbery conviction
meets the definition of a ‘violent felony' under
the ACCA because it has as an element ‘threatened use
of physical force' against another . . . .”).

For
these reasons, the Court finds that Early was properly
classified as a career offender, and that, in failing to
argue otherwise, Early's attorney ...

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